Back Story
There is an excellent summary of the district court’s decision from May 2012 over at James Grimmelmann’s blog.
The abbreviated story is that in April 2008 three publishers (Cambridge University Press, Oxford University Press, and SAGE Publishers) brought suit against Georgia State in relation to the school’s electronic reserve policy. The suit was backed by the Association of American Publishers and the Copyright Clearance Center (CCC), a licensing company.
This was a complicated case, not least because the publishers had a surprisingly hard time showing they owned the relevant copyrights. Judge Orinda Evans of the U.S. District Court in Atlanta handed down a 350 page decision in May. Of all the books the plaintiffs said were infringed, many did not even make it to a fair use analysis because the only copying that had taken place was to confirm the files were on reserve.
In terms of fair use, the highlights of the decision were:
(1) The educational purpose of the use favored the defendant.
(2) The informational nature of the use favored the defendant.
(3) The third fair use factor, the amount and substantiality of the portion copied, turned out to be quite interesting.
- The court rejected the Classroom Guidelines as incompatible “with the language and intent of § 107” and suggested its own quantitative test: 10% of the total page count for books of nine chapters or less and one chapter for longer books. Going above this limit is not fatal to the defendant, but staying below is highly favorable.
(4) In terms of the fourth factor, the effect of the defendant’s use on the on the market for/value of the plaintiff’s work, the court found that this favored the plaintiffs digital licensing was available through the CCC.
- But in the majority of cases the 4th factor still favored Georgia State because there was “no evidence in the record to show that digital excerpts from this book were available for licensing” as of the date of infringement.” Note that photocopying licenses were not seen to be a close substitute for digital reserve licenses. Another important piece of context here is that students would not have bought the assigned books as a substitute for the excerpts posted on the e-reserve system. Thus, no harm, no foul. Consistent with a “market failure” analysis, in the context of orphan works this suggests a broad scope for fair use.
Only five out of 74 of course reserve listings fell on the wrong side of this fair use analysis
The Update – No Injunction
As reported in the Chronicle of Higher Education, on Friday afternoon, Judge Evans issued an order denying the plaintiffs’ request for injunctive and declaratory relief. The only remedy the publishers got was an order that the defendant’s fine-tune their copyright policy to make it “not inconsistent” with the Judge’s ruling.
The Judge determined that Georgia State University was, on balance, the prevailing party (they won 69:5 after all), and was thus entitled to “reasonable attorney’s fees”.
This is a massive vindication for Georgia State University, the institution was depicted as copyright outlaw by the plaintiffs, but the court was “convinced that defendants did try to comply with the copyright laws,” and mostly succeeded. It is also further real world evidence that with the right legal advice, fair use can be somewhat predicable. See my article on Predicting Fair Use for an empirical study to this effect.